The "Occupy Central" movement in Hong Kong has involved large numbers of protesters occupying major roads in Hong Kong, particularly in the areas of Admiralty (on Hong Kong Island) and Mong Kok (on the Kowloon Peninsula). These on-going protests have attracted worldwide attention and many column inches in the international press. What has been less widely reported is that many of the efforts to disperse the protestors have been the result of civil injunctions obtained by certain parties affected negatively by the protests as opposed to direct government action.
We outline below the test and procedure for obtaining an ex parte (without notice) interlocutory injunction in Hong Kong with reference to some of the interesting issues which have arisen in the "Occupy Central" cases (the "CITIC Tower Action"(1), the "Taxi Operators Action"(2) and the "Minibus Manager Action"(3). Broadly, these injunctions restrain the protesters from occupying and obstructing a number of specific sections of major roads on Hong Kong Island and Kowloon. As outlined below, a key determining factor in favour of the Plaintiffs in these actions (thus far) was that the public's right to use the roads was found to prevail over the rights of the protesters to engage in public protest.
In American Cyanamid Co v Ethicon Ltd(4), Lord Diplock laid down guidelines as to how the court's discretion to grant interim injunctions should be exercised. These guidelines are commonly referred to as the "American Cyanamid Guidelines" and are entrenched in Hong Kong law. Recently, the court in Turbo Top Ltd v Lee Cheuk Yan(5) summarised the American Cyanamid Guidelines, noting that the court has to consider: (1) whether there are serious issues to be tried, (2) whether damages would be an adequate remedy for either side; and (3) where the balance of convenience lies in terms of whether to grant an interlocutory injunction pending the trial of the matter.
1. Serious issues to be tried
A plaintiff must satisfy the court that his cause of action has substance. The court is therefore only required to examine the merits to a limited extent.
The Taxi Operators Action and Minibus Manager Action (for convenience the court called these tow injunctions collectively the "Mong Kok Injunction" as they largely concerned the same issues) are premised on claims for public nuisance.
The Taxi Operators Action was brought as a representative action by Mr Lai Hoi Ping and Mr Tam Chun Hung on their own behalf and on behalf of and on behalf of member of the Hong Kong Taxi Association and members of the Taxi Drivers and Operators Association.
It was accepted by the Defendant that blocking the highway for an unreasonable period of time and extent, which significantly interferes with the public's right to use it, amounts to public nuisance. However, the Defendant contended that the Plaintiffs, as an individual or collection thereof, had not suffered particular, substantial and direct damage, thereby permitting a private individual (without joining the Secretary for Justice) to claim for public nuisance. In order to satisfy this requirement, a plaintiff must show that he has suffered a particular, direct and substantial injury above and beyond what is suffered by the public at large(6).
Whether the loss suffered by a plaintiff can be considered as particular, substantial and direct is essentially a question of fact, matter of degree and extent(7). The Plaintiffs' position was that as a result of the blocked areas, there was congestion in Kowloon. This resulted in a significant reduction in the number of passengers and therefore a drop in the average income of each individual represented in the Taxi Operators Action.
The court determined that the losses of the Plaintiffs would at least come within the meaning of substantial damage as they are more than trivial or not fleeting or evanescent (6). It was also found that it was at least triable that the losses suffered are direct, i.e. they result from an unbroken chain of probable events caused by the nuisance. The losses, in the court's view, were clearly above what the general public has suffered at large as a result of the public nuisance.
The Defendant sought to argue that the Taxi Operators Action could not be brought as a representative action on the basis that each individual does not share the same interest but have suffered differing levels of loss. This view was rejected by the court on the basis that an "interest" shared by all members of the class in a representative action can be satisfied if every member of the class has a separate cause of action in tort(8).
It is worth noting that in civil actions to date, the courts have not been asked to make a final determination on the merits of the arguments. However, it appears the courts do not think much of the defendant's arguments (which are unlikely to go to trial). The courts have also stressed they will not get involved in the respective political arguments (however well-intentioned some demonstrators may be).
2. Adequacy of damages
The court must consider whether damages would be an adequate remedy for the plaintiff. In considering this question, the court will take into account whether the damage would be difficult to assess or is outside the scope of pecuniary compensation. The court will also account for the likelihood of a defendant being of sufficient financial means to pay any damages.
The court did not address this point directly in the context of the Taxi Operators Action. However, in respect of the CITIC Tower Action, it found that damages are unlikely to be a sufficient remedy for the Plaintiffs. This finding was on the basis that there was no evidence to show that the Defendant is in a position to compensate the Plaintiffs' financial loss.
3. Balance of Convenience
In assessing where the balance of convenience lies, the court will take into account all the facts of the case. The court is essentially assessing what inconvenience would be caused to each party if the injunction is granted or not.
In the Taxi Operators Action the court concluded that in balancing the respective rights of (1) the public to use the roads and (2) those exercising the right to demonstration on the roads, the balance tilts towards the Plaintiffs. Further, in light of the length and extent of the occupation, the protest was not a reasonable use of the public space. Therefore, the Defendant has no lawful excuse to create an obstruction. As the court stated in the Minibus Manager Action:
"The right to use public highway in a lawful and reasonable manner for legitimate purposes is a right commonly enjoyed by all members of the public. No one can possibly claim a monopoly fo using the public highway in total disregard of the interests of his fellow citizens, no matter how honourable or noble his cause may be."
It is worth stressing that the Plaintiffs were seeking to enforce their rights only in respect of specific areas of the roads (delineated in the court orders).
Full and frank disclosure
It is incumbent on a plaintiff applying for an injunction ex parte to provide full and frank disclosure of all the relevant facts in relation to the application, even if some of the facts are adverse to the application. Such facts are disclosed by way of a witness statement or affidavit.
The Defendant submitted that there had been material non-disclosure in obtaining the injunction and it should therefore be set aside. The alleged non-disclosure concerned the Plaintiffs' contention that at least 65% of the members of the Hong Kong Taxi Association operate mainly on the Kowloon side of Hong Kong and were thereby affected by the protest site at Mong Kok. The Defendant argued that the Plaintiffs should have disclosed what proportion of that 65% of members actually travel across the blocked area itself. The court rejected the Defendant's submission on the basis that all taxi drivers suffer loss as a result of the general decrease in passengers by reason of the general traffic congestion on the roads caused by the blocked area. It was therefore held that it was not material for them to show what percentage of drivers pass the blocked area every day or week.
Enforcement and breach
Non-compliance with an injunction carries serious consequences. It amounts to civil contempt, which is punishable by way of imprisonment or a fine. The former must be exercised by a judge with considerable care. The court has discretion to fix the length of term in accordance with the seriousness of the contempt(9). When assessing the amount of any fine, the court will take into account the seriousness of the contempt and damage to the public interest(10).
The Taxi Operators Action application raises some interesting issues of enforcement. The Plaintiffs had been unable to enforce the injunction itself as persons said to be aware of its provisions are alleged to have openly flouted, and continued to breach, the injunction by refusing to move from the Mong Kok protest site. Clearly fines for civil contempt would not achieve the objective of removing the protestors in this instance.
Accordingly, on 10 November 2014, the court added bailiff directions and a Police authorisation directive to the injunction. The effect being that any protestor who obstructed the bailiffs /Police in clearing the affected protest sites would be in criminal contempt of the court and liable to arrest. It has been reported that when the Police were called in to assist the bailiffs in attempting to clear the Mong Kik protest site, over 100 arrests were made (although a large number of these of will have been for public order offences).
The action undertaken by the various parties affected by the "Occupy Central" protest sites demonstrates the extent to which injunctions can be sought to remedy a wide variety of civil offences.
The three actions also demonstrate the difficulty that a plaintiff can face when attempting to enforce an injunction. Having successfully obtained the injunctions sought, the Plaintiffs were required to return to court to seek directions as to their enforcement. The cost of such is in all likelihood not going to be borne by the protestors. It is always sensible to consider, at the outset, how an injunction will be enforced, if granted. If potential difficulties are foreseen, these should be addressed with the court at the initial application. Not all plaintiffs, of course, will have the assistance of the Hong Kong Police when it comes to enforcement.